HELP! My land surveyor is not carrying out my instructions! - Part 2
Good day, readers. This week we continue with the response to the question posed by a reader two weeks ago.
Good day, Mr Francis,
I need some help and advice. I hired a land surveyor to survey a piece of land that my grandfather died and left for me. There is a walkway that people have been using from before I was born on a section of my grandfather's land. I have heard that it has been in use from in the 1940s. However, I told your colleague that I don't want it there anymore as I don't want anyone walking on my property and he refused to do what I asked. He told me that he couldn't survey the property so that I could fence out the users of the walkway, even though it is now my property and I hired him and he is to follow my instructions. He had done three-quarters of the property, but then we had the disagreement. I told him if he is not going to do it my way, he is to leave my property.
Mr Francis, I want to know why he wasn't carrying out my wishes and I am the one who hired him, and why I can't stop the people from using this 'pass' even though it's on my land. Also, sir, the surveyor refused to give me a refund of the money I already deposited even though he hasn't completed the task.
D.C., I have already explained why the surveyor is not totally beholden to you and the instructions you give.
This week, I will deal with the possible reason why your commissioned land surveyor refused to accede to your request to have the 'pass' surveyed in a manner that would allow you to fence and restrict the use of this right of way that, as you said, existed on the property from the 1940s.
By your own admission, this means of access through your grandfather's property has been open and continuous for in excess of 65 years, and possibly 70, depending on when in the 1940s the use started. The users of the pass of which you speak have now, and for quite some time, acquired what is called a prescriptive right of way or easement over your grandfather's property that you have now acquired and is trying to have surveyed.
Section 3 of the Limitation of Actions Act essentially says that if someone is using a section of your property for access you would have to bring an action to stop it before 12 years. Failure to do so gives the users a prescriptive right to use same. In essence, because you grandfather had not taken any action within the 12-year period, the Limitation of Actions Act now essentially prohibits you from blocking the pass and stopping the users of the pass from gaining access as they have done for the past many years. Even had it been government land, 60 years would have elapsed and the same rights would have been afforded the users of the 'pass'.
Reason for refund refusal
This may have been the reason why your commissioned land surveyor may have refused to carry out your request to complete the survey in a manner that would cause you to impede or stop the users of the pass.
You have also asked why he has refused to refund your money as he had not completed your Job.
The surveyor would have expended money to conduct research in preparation for your job and possibly to acquire documents pertaining to your property and for conducting your job. He came, and as you stated, completed three-quarters of the survey; however, was unable to complete it at your insistence.
Having done the research, presented himself at you property to conduct the survey and was completing your survey, but had to stop at your insistence in trying to have him complete an action he deemed not in keeping with law, he would not refund you your deposit.
To do that would cause him to incur a loss. This also is not an action on his part why your job was not completed, but owing to an objection by you, his client, and instructions from you to stop.
What I suggest is that you get legal advice on the pass, then when you have cleared up that matter, re-engage your surveyor to come and finish up the survey.
Keep sending your questions and comments and let's continue to explore A Matter of Land. Until next time, traverse well.
- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at email@example.com or his Facebook page Precision Surveying Service.